Monthly Archives: December 2014

Top 10 Things Santa’s Lawyer Needs to Know

  1. Does Santa have liability insurance in place for this operation?
  2. Does Santa’s medical benefits plan cover “chimney-related mishaps”?
  3. Are employment contracts in place for the Elves?
  4. Does Santa have pet insurance for the reindeer?
  5. Does Santa have a criminal lawyer on retainer in the event of “break and enter” allegations?
  6. Does Santa have a “pre-nup” with Mrs. Claus?
  7. Does Santa have good title to the North Pole?
  8. Is Santa’s passport current?
  9. Has Santa filed his flight plan with all necessary air traffic control zones?
  10. “If you’re going to keep up with this lifestyle, we need to discuss your estate planning!”

Court hearings “In Chambers”: how the courts manage their workflow

Our Facebook post from Monday shared a link to a site that had some laugh out loud quotations from the court room.  Real court room experiences are rarely humorous.  The stakes in court applications are high and the results are far from certain. The expense of having a lawyer represent you in this process (whether you win or lose) can be daunting. In civil matters (that is, non-criminal matters such as lawsuits, divorces, estate disputes, and the like), it can take years to reach a final resolution using only the court process.  Despite the uncertainty, cost and time involved in the court process, the courts are still crowded with cases.

The reality of the court process (i.e., the uncertainty, cost and delay) often convinces parties to settle, rather than go to trial.  But not all court proceedings are trials. It is quite common for parties to need the court to resolve a particular issue in a matter before a comprehensive settlement is reached.  Even after parties reach a settlement, disputes can still flare up that need to be resolved in court.  This occurs regularly in family law matters where the needs and best interests of the children can change over time.  These limited-issue matters arise frequently and the courts have developed a system to manage the large volume that they experience.

These limited issues are normally dealt with in Alberta’s superior court (the Court of Queen’s Bench) when Judges sit “In Chambers”. “Chambers” is a particular type of court hearing – essentially anything that is not a trial. Here are some interesting things you might want to know about Chambers:

  • It takes place regularly:  daily in larger centres like Edmonton and Calgary, and on specified days in smaller centres.
  • It takes place in a court room but it is less formal than a trial: the Judges and lawyers wear business attire instead of the formal robes worn during trials.
  • Evidence is typically presented in written form (in sworn Affidavits) and not given in sworn oral testimony.
  • In “Morning Chambers” there is a  20-minute time limit for each matter heard. The parties (or their lawyers) must both present their argument within the 20 minute limit.
  • There is a list for each day and for each courtroom that identifies all of the matters to be heard by the Judge. The Judge hears each matter on the list until all the matters have been considered and dealt with (resolved, adjourned, dismissed, etc). On a typical day, there can be 30 or more matters on the Morning Chambers list for each courtroom being used for this purpose.  In Edmonton, where we normally attend court, there are usually two courtrooms open to deal with Family Law Morning Chambers and one or two more courtrooms to handle “Justice” Morning Chambers (i.e., matters that are not related to criminal law or family law).
  • If a matter will take more than 20 minutes but less than one hour to be heard (because of the number or complexity of the issues involved), the matter must be heard in “Special Chambers”.
  • If a matter will take longer than one hour to be heard, the matter must be booked on the same list that is used to book actual trials.

These comments apply to Chambers in the Court of Queen’s Bench.  The Provincial Court has a similar approach to trying to organize and streamline its workflow but it is less formalized in terms of policy and more variable depending on the court house involved.

You can see that how quickly you can get your matter heard in court will depend on the kind of issue you are asking the court to decide:  the simpler and more precise the issue, the more likely it can be dealt with in Morning Chambers.  A complicated matter will take more time and need to be booked when a Judge has sufficient time to hear it, which could be weeks or months away, given the sheer volume of cases waiting to be heard. In this respect, getting a court date is sort of like going out to eat: if you just want a quick burger, you can get one anytime, you’re in and out quickly and it won’t cost too much. But if you want a multiple-course meal, you need to book ahead, you’re going to be there for awhile and it’s going to cost you a lot more than that quick burger.

We think there are three “take-aways”:

  1. Avoid going to court in the first place. Try to resolve the matter without having to go to court. A certain result that you participate in is almost always better than an uncertain result that will be imposed by a Judge who does not know you at all.
  2. If you must go to court, still keep trying to resolve the matter outside of court.
  3. Keep it simple. The more issues you have and the more complicated your matter is, the greater the costs, the uncertainty and the time needed to resolve it.

At Patriot Law Group, our lawyers have experience at all levels of the Alberta Courts and in a wide range of court locations.  We are well positioned to assist in navigating the court system in our primary litigation practice areas of family law, estate administration, and civil claims.

Agreements and Child Support

At Patriot Law Group, we are big believers in reaching a negotiated settlement to resolve the issues that can arise out of your separation. A recent case heard by the Alberta Court of Appeal (the province’s highest court) highlighted the need for parents to follow through on their obligations  under their agreement, particularly when it affects child support. It dealt with the issue of retroactive child support (the mother’s attempt to collect child support payments that had accumulated in the past)[1] .

A couple had a brief relationship that resulted in a child being born. The couple had very little contact after the relationship ended and the father paid no child support for the first four or five years of the child’s life. Eventually, the couple came to a written agreement dealing with child support that set out the amount the father would pay to the mother, based on his income at the time. They went on to live their separate lives in different towns. The child lived with the mother and the father rarely saw the child but paid the amount directed in the agreement.

All seemed well. However, after nearly 13 years receiving the exact same amount of support, the mother asked the father for his most recent financial information. Their agreement required them to exchange information annually, but they never did. When the mother received the father’s financial information, it was clear that the father’s income had increased dramatically since the agreement was made. Child support is directly related to the payor parent’s income, so the father had been underpaying child support for years.

The mother then brought an application in court for “retroactive” child support. The Supreme Court of Canada had previously dealt with the matter of retroactive child support[2] and came up with a series of four factors that a Canadian court should consider when making an order for retroactive child support: unreasonable delay by the recipient parent; “blameworthy” conduct of the payor parent; circumstances (or “needs”) of the child; and hardship caused to the payor parent by a retroactive award.

The Alberta Court of Appeal looked at each of the factors through the “lens” of the child support agreement. The Court of Appeal found that the father had undertaken a positive ongoing obligation to disclose his income and that his failure to meet the obligation trumped any delay by the mother in seeking increased support. Next, the Court  found that despite his lack of intention to do so by underpaying support, he had disadvantaged the child in reality, so the ‘conduct’ factor weighed against him. The court determined that since a child has the right to be supported commensurate to the parents’ income, “need” for support at the payor parent’s level of income is presumed. That is, it did not matter that the child had not suffered actual hardship; the child should have had a higher standard of living because the father should have been paying support based on his increased income. Lastly, the Court found that a payor parent can’t claim financial hardship without significant proof of actual hardship and the enforcement of the obligation to pay child support from a prior period is not hardship in itself.

The takeaway point is that Alberta’s Court of Appeal has taken a hard line on enforcing settlement agreements. This case creates a precedent that allows the courts to claw back underpaid support, particularly when an agreement has been ignored. Parents can no longer sign an agreement and forget about the ongoing obligations in it. Payor parents must stay up to date with providing annual financial disclosure and adjusting the amount of support accordingly. It does not matter whether the recipient parent asks for the information or provides any. It does not matter whether or not the payor intended to underpay support. It does not matter if the child does not have a documented “need” for more money to live. It does not matter that paying back the child support owed will be financially inconvenient. The Alberta Court of Appeal has spoken: parents must honour their agreements and fully support their children.

Of course, every case is different and different facts can lead to different results. We would be pleased to discuss with you whether and how this case applies to your own circumstances.

 

[1] Goulding v Keck, 2014 ABCA 138

[2] DBS v SRG, 2006 SCC 37

Our Activities Outside the Law Office – One Example

Since Michelle’s Facebook post earlier this week (relating to Michelle’s opportunity to meet David Chilton of the Wealthy Barber and Dragon’s Den fame at the Federation of Alberta Gas Co-op’s annual convention), she has had queries about what this “Gas Co-op business” is all about.

So, this blog post is not about lawyers or the law directly. Rather, it is about one of the many extracurricular activities of the lawyers at Patriot Law Group.

Michelle is one of the Directors of her local gas co-op, West Parkland Gas Co-op Ltd. Rural gas co-ops have existed in Alberta since the 1960s. West Parkland Gas Co-op was officially incorporated in 1972. Initially formed to assist with supplying natural gas to rural farmers, gas co-ops have extended their reach to providing natural gas to a wide reaching network of rural Albertans, including farmers, acreage owners, and rural businesses. In the 1970s, the Alberta government began backing the “Rural Gas Program”, which it has supported ever since, both financially and by regulation. Now, virtually every Albertan has access to natural gas supply.
These individual gas co-operatives (and other member utilities) eventually formed the Federation of Alberta Gas Co-ops Ltd (the “Federation”). The Federation collectively the members that comprise Alberta’s rural gas distribution system, the largest of its kind in the world. This year is the Federation’s 50th anniversary.

The Federation acts collectively on behalf of its member utilities to provide training, support, insurance benefits and related services. It is also a very effective lobbying entity that commands the respect of the Provincial Government. As an indication of the Federation’s influence, more than 40 of the currently sitting MLAs attended the Federation’s recent convention for a “bear pit” question and answer session.

MLA 1
MLA2

 

 

 

 

 

 

 

 

 
If you are interested in more information about West Parkland Gas Co-op Ltd, check out the website. For the Federation, you can also check out their website.
Of course, you can also contact Michelle with any questions.